Opinion
No. 5-845 / 04-1782
Filed December 21, 2005
Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.
Pablo Benavidez appeals from his conviction and sentence for murder in the first degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Tom Tauber and Richard J. Bennett, Assistant Attorneys General, John P. Sarcone, County Attorney, and Nan Horvat and Daniel Voogt, Assistant County Attorneys, for appellee.
Heard by Huitink, P.J., and Mahan and Hecht, JJ.
Pablo Benavidez appeals from his conviction and sentence for murder in the first degree. We affirm.
I. Background Facts and Proceedings
Juan Mandujano was shot and killed in his home by intruders during the early morning hours of November 26, 2001. Benavidez and two other men were subsequently charged with first-degree murder in violation of Iowa Code sections 707.1 (2003) and 707.2.
At trial, two key witnesses testified on behalf of the State. The first, Vonvichit "Shorty" Vilaysack, testified pursuant to a plea agreement based on a first-degree robbery charge stemming from the events surrounding Mandujano's death. Vilaysack testified a man known to him as "Dang" contacted Vilaysack and asked him to help steal a car which contained drugs. Vilaysack met Dang, Rodolfo Tables Rodriguez, and Benavidez at Dang's apartment. Vilaysack drove the four men in Dang's car to Mandujano's home. Benavidez directed Vilaysack to the home and told him they intended to steal a red car parked in the driveway. A second car was parked behind the red car, blocking it. Vilaysack parked the car, and the four men climbed a fence into a neighboring yard. Benavidez and Dang were carrying semi-automatic handguns. When Dang asked Vilaysack to knock down the back door of Mandujano's home, Vilaysack refused and went back to Dang's car. Dang, Rodriguez, and Benavidez kicked in the back door and ran into the house. Vilaysack heard two gunshots shortly after the men entered the house, then observed the three men run out of the house. Benavidez and Dang fired at the house as they ran to Dang's car. The three men got in the car and told Vilaysack to drive off.
The State charged "Dang" with first-degree murder under the name of Vongphachanh Siharath a/k/a Ongphachanh Siharath.
The State presented expert evidence that two guns were used in the shooting. Police found twelve fired cartridge casings at the crime scene, two of which were inside the house. This physical evidence corroborated Vilaysack's testimony that Benavidez and Dang were armed with semi-automatic handguns.
Brenda Ramirez, Mandujano's girlfriend, also testified on the State's behalf. She testified that she and Mandujano had returned from California with three and one-half pounds of methamphetamine on November 25, the day before the shooting. The drugs had been hidden inside a car door during the trip back to Iowa. Mandujano had removed the drugs and hidden them in the basement of his home upon their return. Ramirez and Mandujano were sleeping in their bedroom when Ramirez woke up after hearing two people speaking in low voices and walking slowly through the house. She awakened Mandujano and told him people were in the house. When the intruders entered the bedroom, she jumped out of bed and hid in a closet. She heard a gunshot, followed by Mandujano's screams. Then she heard Benavidez swear and more gunshots.
Although she did not see Benavidez, Ramirez recognized his voice. She and Benavidez had dated several months earlier. Ramirez later told police she was 100 percent certain it was Benavidez's voice she had heard. Ramirez was eventually charged with drug offenses and entered into a plea agreement in exchange for her testimony at Benavidez's trial.
Mandujano died as a result of two gunshot wounds. On December 20, 2001, police officers went to a Des Moines residence seeking Benavidez as a material witness relevant to the murder investigation. Police also had a misdemeanor arrest warrant for Benavidez. Officers found Benavidez hiding in the attic of the residence. After struggling with the officers, ultimately crashing through the ceiling and falling onto the kitchen floor, Benavidez was placed in custody.
At trial, the district court instructed the jury it could convict Benavidez of first-degree murder on the basis of either premeditated murder or felony murder. The felony murder alternative was submitted with the forcible felonies of willful injury and robbery. The court further instructed the jury it could find Benavidez guilty as a principal based on his own conduct or under theories of aiding and abetting or joint criminal conduct. The jury returned a general verdict finding Benavidez guilty of first-degree murder.
Benavidez appeals, raising the following issues: (1) sufficiency of the evidence; (2) ineffective assistance of counsel; (3) the district court erred in overruling his motion for continuance of trial; and (4) the district court erred in denying his Batson challenge to the State's use of preemptory strikes to strike two prospective jurors.
II. Sufficiency of the Evidence
We review sufficiency-of-the-evidence claims for errors at law. Iowa R. App. P. 6.4. We uphold a verdict if substantial evidence supports it. State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005). "Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt." State v. Biddle, 652 N.W.2d 191, 197 (Iowa 2002). We consider all record evidence, not just the evidence supporting guilt, when making sufficiency-of-the-evidence determinations. Quinn, 691 N.W.2d at 407. Direct and circumstantial evidence are equally probative. Iowa R. App. P. 6.14(6)( p). We view the evidence in the light most favorable to the State, "including legitimate inferences and presumptions that may fairly and reasonably be deduced from the record evidence." Biddle, 652 N.W.2d at 197. Discrepancies in testimony do not preclude proof beyond a reasonable doubt. State v. Speaks, 576 N.W.2d 629, 632 (Iowa Ct. App. 1998). A jury is free to believe or disbelieve any testimony it chooses and to give as much weight to the evidence as, in its judgment, such evidence should receive. Id.
Benavidez argues the State failed to prove him guilty beyond a reasonable doubt. He claims the evidence connecting him to the crime was "suspect at best." Specifically, he argues there was insufficient evidence to establish his guilt as an aider and abettor and insufficient corroboration of accomplice testimony. The State argues Benavidez has not preserved this argument for appeal because his motion for judgment of acquittal did not include the specific grounds he raises on appeal.
To preserve error for appellate review on a claim of insufficient evidence, "the defendant must make a motion for judgment of acquittal at trial that identifies the specific grounds raised on appeal." State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004). However, "we recognize an exception to the general error-preservation rule when the record indicates that the grounds for a motion were obvious and understood by the trial court and counsel." State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005). We have reviewed the record relevant to the motion for judgment of acquittal and conclude Benavidez adequately preserved error.
To convict Benavidez of first-degree murder on the theory of aiding and abetting, the State was required to prove beyond a reasonable doubt that Benavidez assented to or lent countenance and approval to a criminal act either by actively participating in it or by in some manner encouraging it prior to or at the time of its commission. Speaks, 576 N.W.2d at 632. Knowledge of the act "is essential; however, neither knowledge nor presence at the scene of the crime is sufficient to prove aiding and abetting." State v. Doss, 355 N.W.2d 874, 878 (Iowa 1984) (citation omitted). The guilt or innocence of a person charged with aiding and abetting must be determined upon facts which show the person's part in the crime and does not depend upon another's degree of guilt. Speaks, 576 N.W.2d at 632. If specific intent is an element of the crime charged, a person may be convicted on a theory of aiding and abetting if the person participates either with the requisite intent or with the knowledge that the principal possesses the required intent. Id. A defendant's participation in the crime as an aider and abettor may be proven by circumstantial evidence. Doss, 355 N.W.2d at 878.
We conclude sufficient evidence supports Benavidez's conviction of first-degree murder. Benavidez was armed with one of the two guns fired at the scene. Even if Benavidez did not fire either of the two shots that killed Mandujano, there is substantial evidence of his aiding and abetting in the crime. Benavidez directed Vilaysack to Mandujano's home and appeared to have personal knowledge that Mandujano had drugs. Benavidez was observed firing shots at the home as he fled with others. Ramirez recognized Benavidez's voice inside the home during the shooting. Benavidez hid from police when they arrived to arrest him several weeks after the shooting.
Benavidez argues much of the evidence connecting him to the crime came from the testimony of Vilaysack, who he asserts was an accomplice. In order to convict a defendant upon the testimony of an accomplice, the testimony must be corroborated by other evidence. Iowa R. Crim. P. 2.21(3). Corroboration evidence "need not be strong," nor must it confirm every material fact testified to by an accomplice or support all elements of the crime. Doss, 355 N.W.2d at 879. "The only requirement is that the accomplice's testimony be supported in some material fact tending to connect the defendant to the crime charged." Id.
The jury was not instructed that Vilaysack was an accomplice as a matter of law, but it was instructed it could find he was an accomplice. Assuming the jury found Vilaysack was an accomplice, we conclude the State presented sufficient corroboration of Vilaysack's testimony. Ramirez testified she told police she was 100 percent certain she had heard Benavidez's voice in the house that night. Ballistics evidence confirmed the shots fired came from a semi-automatic weapon, the type of weapon Vilaysack testified Benavidez was carrying that night. Police found fired cartridge casings inside and outside the house, which corroborated Vilaysack's testimony that he heard shots from inside the house and observed Benavidez and Dang fire at the house as they fled. Moreover, Benavidez's own actions when confronted by police reflect a consciousness of guilt sufficient to corroborate Vilaysack's testimony. See State v. Cox, 500 N.W.2d 23, 24 (Iowa 1993) (holding that "[a]dmissions may be implied by the conduct of the defendant subsequent to a crime . . . when such conduct indicates a consciousness of guilt").
The jury returned a general verdict and was not given a special interrogatory on the question of whether Vilaysack was an accomplice. The court's failure to submit such an interrogatory is the subject of Benavidez's ineffective assistance of counsel claim.
We conclude any accomplice testimony was sufficiently corroborated and sufficient evidence supports Benavidez's conviction of first-degree murder.
III. Ineffective Assistance of Counsel
Benavidez argues his trial counsel was ineffective by failing to request that the district court (1) instruct the jury that Vilaysack was an accomplice as a matter of law, or (2) submit a special interrogatory pursuant to Iowa Rule of Criminal Procedure 2.22(2) on the issue of Vilaysack's status as an accomplice.
To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty and (2) prejudice resulted to the extent it denied defendant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998). The defendant must prove both elements by a preponderance of the evidence. State v. Reynolds, 670 N.W.2d 405, 411 (Iowa 2003). "[T]here is a strong presumption that trial counsel's conduct fell within the wide range of reasonable professional assistance." DeVoss v. State, 648 N.W.2d 56, 64 (Iowa 2002). We may dispose of an ineffective-assistance-of-counsel claim if the applicant fails to meet either the breach of duty or the prejudice prong. Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 699 (1984); State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997). In order to show prejudice, a defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." DeVoss, 648 N.W.2d at 64.
We generally preserve ineffective-assistance-of-counsel claims for postconviction relief proceedings "to afford the defendant an evidentiary hearing and thereby permit development of a more complete record." Reynolds, 670 N.W.2d at 411. However, we will resolve such claims on direct appeal "where the record is adequate to determine as a matter of law that the defendant will be unable to establish one or both of the elements of his ineffective-assistance claim." Id. Under such circumstances, we affirm the defendant's conviction without preserving the ineffective-assistance claims. Id. We can resolve Benavidez's ineffective-assistance-of-counsel claims on direct appeal because we conclude he cannot prevail on either claim as a matter of law.
As we determined in our consideration of Benavidez's sufficiency-of-the-evidence claim, the State presented sufficient corroboration of Vilaysack's testimony. Therefore, there is no reasonable probability Benavidez would have been acquitted if the jury had been instructed that Vilaysack, as a matter of law, was an accomplice. We reach the same conclusion in regards to counsel's failure to request a special interrogatory on the accomplice question. See State v. Harris, 589 N.W.2d 239, 242 (Iowa 1999) (holding that defendant was unable to establish prejudice based on court's failure to submit accomplice interrogatory because there was sufficient evidence corroborating defendant's guilt to uphold the verdict).
IV. Motion to Continue Trial
We review the district court's denial of a motion for continuance for an abuse of discretion. State v. Means, 547 N.W.2d 615, 622 (Iowa Ct.App. 1996). Motions for continuance are discouraged; the defendant must show a "good and compelling cause" for granting a continuance. Iowa R. Crim. P. 2.9(2); State v. Ruesga, 619 N.W.2d 377, 384 (Iowa 2000). We will reverse the district court's denial only if injustice will result to the party desiring a continuance. In re C.W., 554 N.W.2d 279, 281 (Iowa Ct.App. 1996).
A few days before trial, Benavidez's counsel received a letter from the prosecutor. The letter informed counsel the State had recently become aware that a weapon used in a recent double homicide had been connected to an earlier drive-by shooting in which Benavidez may be a suspect, as well as an earlier shooting at the Mandujano residence. The letter clarified that the weapon used in the double homicide "was not the weapon used in the Juan Mandujano murder, but connected to an earlier event as described."
The district court considered Benavidez's motion for a continuance on the first day of trial. Defense counsel argued he needed more time to investigate the information contained in the prosecutor's letter. He contended the letter provided "some information that there is another potential suspect in the shooting" of Mandujano and that such information could be used as a defense. The prosecutor told the court he had disclosed the information to the defense "out of an overabundance of caution" and that there was "no evidence to suggest that the firearm that was used in the [double homicide] has any relevance or bearing on this charge we have levied against Mr. Benavidez." The court denied the request for a continuance, concluding the information was too remote and speculative to delay the trial. We agree with the district court's assessment of the information presented in the prosecutor's letter and affirm on this issue.
V. Batson Challenge
Benavidez, an Hispanic, contends the district court erred in overruling his Batson challenge to the State's peremptory strike of one of two African-American prospective jurors and the only Hispanic prospective juror. Because this claim raises constitutional implications our review is de novo. State v. Griffin, 564 N.W.2d 370, 372 (Iowa 1997).
The United States Supreme Court has set forth, under the Equal Protection Clause, a three-part analysis for determining whether peremptory challenges or strikes have been exercised impermissibly on the basis of race. Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S. Ct. 1712, 1723-24, 90 L. Ed. 2d 69, 87-89 (1986). First, the defendant must establish a prima facie case of purposeful discrimination in selection of the jury panel by showing he is a member of the recognizable minority and the prosecutor used peremptory challenges to remove members of the venire based on their race, whether or not they are the same race as the defendant. Id. at 96, 106 S. Ct. at 1723, 90 L. Ed. 2d at 87; Powers v. Ohio, 499 U.S. 400, 416, 111 S. Ct. 1364, 1373, 113 L. Ed. 2d 411, 428-29 (1991); see also Griffin, 564 N.W.2d at 375; State v. Keys, 535 N.W.2d 783, 785 (Iowa Ct.App. 1995). The burden then shifts to the State to articulate a race-neutral reason for challenging the jurors. Batson, 476 U.S. at 97, 106 S. Ct. at 1723, 90 L. Ed. 2d at 88; Griffin, 564 N.W.2d at 375. Finally, the trial court must determine whether the defendant has established purposeful discrimination. Batson, 476 U.S. at 98, 106 S. Ct. at 1724, 90 L. Ed. 2d at 88-89. The district court's findings of purposeful discrimination turn largely on an evaluation of credibility; therefore, we give those findings great deference. Id. at 98 n. 21, 106 S. Ct. at 1724 n. 21, 90 L. Ed. 2d at 88-89 n. 21.
The district court concluded Benavidez had not made a prima facie showing of discrimination as to the African-American jurors. We agree. The prosecutor's strike did not systematically exclude African-American members of the venire, as one African-American juror remained on the jury.
The district court found Benavidez made a prima facie showing of discrimination as to the removal of the only Hispanic prospective juror. However, the court concluded the State had articulated a "clear and justifiable and race- or class-neutral explanation for that strike." The prosecutor explained his strike of the Hispanic prospective juror was based on his verbal and physical responses to the prosecutor's questions. The prospective juror rolled his eyes when the prosecutor was addressing him and indicated his distrust of the criminal justice system. We agree with the district court's conclusion. The State's reason for striking the Hispanic member of the jury panel was racially neutral on its face and in its application. We affirm on this issue.